KERMIT GABEL, 

vs. 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

Plaintiff, 

Civil Action 2:12-cv-597 

Judge Watson 

Magistrate Judge King 

DR. STUART HUDSON, eta/., 

Defendants. 

OPINION AND ORDER 

On July 9, 2012, the United States Magistrate Judge issued an Order and 

Report and Recommendation recommending that the state law claim of negligence 

be dismissed as against defendants Dr. Stuart Hudson, Dr. Ralph Lyons, Dr. Huling 

and Ed Castaneda, but permitted this claim, as asserted against defendant Dr. Miles 

Finney, to proceed. This matter is before the court on objections filed by plaintiff, 

Doc. No. 12, and by the State of Ohio, Doc. No. 11 , making a special appearance 

pursuant to O.R.C. § 109.361. The Court will consider these objections de novo. 

See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b). 

I. BACKGROUND 

Plaintiff, an inmate at the Marion Correctional Institution ("MCI"), brings this 

civil rights action under 42 U.S.C. § 1983 in connection with the claimed denial of 

plaintiff's constitutional right to medical and dental care. Plaintiff also asserts a 

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supplemental state law claim of negligence. 

Plaintiff alleges, inter alia, that defendant Finney, a contract dentist at MCI, 

refused to replace a filling that had fallen out, and instead indicated only that he 

would extract the affected tooth. Complaint, Doc. No.5, 1m 47-49. Plaintiff alleges 

that, in refusing to replace the filling, this defendant has denied plaintiff his 

constitutional right to dental care and, moreover, has violated a consent decree 

issued by this Court.1 Plaintiff also alleges that he has been diagnosed with gum 

disease but that the condition has not been treated. /d. at 1f64. 

The Magistrate Judge concluded that plaintiff's supplemental state law claim 

of negligence could not proceed in this Court against the defendant state officials 

unless and until the Ohio Court of Claims had determined that the state officials are 

not entitled to civil immunity under O.R.C. § 9.86. Order and Report and 

Recommendation, p. 2 (citing O.R.C. §2743.02(F)); Leaman v. Ohio Dept. of Mental 

Retardation & Developmental Disabilities, 825 F.2d 946, 952-53 (6th Cir. 1987); 

Haynes v. Marshall, 887 F.2d 700, 704 (6th Cir. 1989); Johns v. University of 

Cincinnati Med. Assocs., 804 N.E.2d 19, 24 (Ohio 2004)). The Magistrate Judge 

expressed no opinion, based on the present record, whether defendant Finney may 

properly be characterized as a state official entitled to this protection. /d. at 3. 

1See Stipulation for Injunctive Relief, Fussell v. Wilkinson, 1 :03-cv-704 (S.D. Ohio 

November 22, 2005), Doc. No. 140. That order contemplates "an in-depth study of the existing 

dental program [maintained by the ODCR], [in order to] identify areas of need, and make 

recommendations." /d. at ~112. Those recommendations "shall be incorporated into" the 

Stipulation and "become binding and enforceable .... " /d. at ~113. 

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However, the Magistrate Judge concluded that it was clear that, to the extent the 

claim of negligence is asserted against the remaining defendants, that state law 

claim could not proceed. /d. It was therefore recommended that the state law claim 

of negligence be dismissed as against defendants Hudson, Lyons, Huling and 

Castaneda. 2 

II. PLAINTIFF'S OBJECTIONS 

Plaintiff objects to the Magistrate Judge's conclusion that the state law claim 

of negligence cannot proceed against the defendant state officials until the Ohio 

Court of Claims has determined that the state officials are not entitled to civil 

immunity under O.R.C. § 2743.02(F). Doc. No. 12, p. 1.3 In so objecting, plaintiff 

points out that he previously attempted to adjudicate these claims in the Ohio Court 

of Claims. /d. (citing to Complaint,~ 3 and Exhibit 1, attached thereto). In that state 

action, which named Ohio Department of Rehabilitation and Corrections as a 

defendant, plaintiff asserted a claim of professional malpractice by Dr. Finney and 

asserted that the dental treatment that he received violated the Eighth Amendment 

right to be free from cruel and unusual punishment. Exhibit 1, p. 1, attached to 

Complaint. The Ohio Court of Claims first noted that it lacked jurisdiction to consider 

plaintiff's Eighth Amendment claim. /d. at 1-2. The state court also concluded that, 

2

The Magistrate Judge also concluded that the action could proceed as against all named 

defendants on plaintiff's federal constitutional claims of denial of medical and dental care under 42 U.S.C. 

§ 1983. /d. 

3 After first identifying the state law claim of negligence as the subject of his objection, plaintiff later 

erroneously represents that the Magistrate Judge concluded that the federal claim could not proceed. /d. 

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because plaintiff asserted a dental claim, he was required to file an affidavit of merit 

pursuant to Ohio Civ. R. 1 0(0)(2). /d. at 3. Because plaintiff did not submit an 

affidavit of merit as required by that rule, the state court concluded that plaintiff had 

failed to state a claim for relief. /d. (citing Fletcher v. Univ. Hosps. of Cleveland, 120 

Ohio St. 3d 167 (2008)). The Ohio Court of Claims therefore dismissed plaintiff's 

Eighth Amendment claim for lack of subject matter jurisdiction and dismissed 

plaintiff's dental claim without prejudice. /d. at 3. 

Plaintiff represents that he cannot afford to obtain an expert to provide the 

required affidavit of merit and argues that the Ohio Court of Claims has "refused to 

rule on immunity issue because the plaintiff is indigent." Doc. No. 12, p. 2. Plaintiff 

also argues that the state court's failure to rule on his claims "opens the door'' for this 

Court to adjudicate his state claim of negligence. /d. 

Plaintiffs objections are without merit. As the Magistrate Judge correctly 

concluded, this Court cannot adjudicate plaintiffs state claim of negligence unless 

and until the Ohio Court of Claims determines that the state officials are not entitled 

to civil immunity under O.R.C. § 9.86. Order and Report and Recommendation, p. 

2. Plaintiff has cited to no case law, and this Court is unaware of any authority, that 

permits this Court to adjudicate plaintiffs negligence claim in the absence of a 

finding on the issue of immunity by the Ohio Court of Claims. This is particularly true 

where the Ohio Court of Claims dismissed plaintiffs dental claim for failure to comply 

with the Ohio Rules of Civil Procedure. See Exhibit 1, p. 3 (dismissing where, inter 

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alia, plaintiff failed to submit an affidavit of merit in accordance with Ohio Civ. R. 

1 O(D)(2)). Indeed, district courts in this circuit have previously dismissed such pro 

se claims for failure to comply with Ohio Civ. R. 10(D)(2). See, e.g., Johnson v. 

Rehab. Servs., No. 1:1 0-cv-554, 2011 U.S. Dist. LEXIS 80660, at *8-9 (S.D. Ohio 

July 25, 2011) (dismissing pro se plaintiff's medical malpractice claim for failure to 

submit affidavit of merit); Perotti v. Medlin, NO. 4:05CV2739, 2009 U.S. Dist. LEXIS 

20762, at *5-6 (N.D. Ohio Mar. 16, 2009) (dismissing plaintiff inmate's state medical 

malpractice claims in the absence of the required affidavit of merit). Because 

plaintiff has not established that this condition precedent to his state law claim of 

negligence has been met, "there is no claim under Ohio law upon which relief may 

be granted .... " Haynes, 887 F.2d at 705. See also Bowman v. Shawnee State 

Univ., 220 F.3d 456, 460 n. 3 (6th Cir. 2000). Finally, the Court disagrees with 

plaintiff's assertion that a prior a dismissal without prejudice in the Ohio Court of 

Claims based on a failure to comply with Ohio Civ. R. 10(d)(2) forever bars a 

plaintiff's claim or is otherwise unfair. See, e.g., Ohio Civ. R. 1 O(D)(2)(d) (providing 

that a dismissal for failure to comply with this rule is "a failure otherwise than on the 

merits"); O.R.C. § 2305.19(A) (permitting a claim that "fails otherwise than upon the 

merits" to "commence a new action within one year after the date of ... the plaintiff's 

failure otherwise than upon the merits or within the period of the original applicable 

statute of limitations, whichever occurs later''). 

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Ill. THE STATE OF OHIO'S OBJECTIONS 

As noted supra, the Magistrate Judge expressed no opinion, based on the 

present record, whether defendant Finney may properly be characterized as a state 

official entitled to civil immunity under O.R.C. § 9.86; she therefore permitted the 

state law claim of negligence to proceed against defendant Finney. Order and 

Report and Recommendation, p. 3. The State of Ohio now objects to the Magistrate 

Judge's decision in this regard, arguing that defendant Finney enjoys the same 

personal immunity as the other defendants. Doc. No. 11, pp. 2-3. In support of this 

position, the State of Ohio notes that the Complaint avers that defendant Finney was 

contracted by the state to provide dental care to MCI inmates. /d. at 2 (citing 

Complaint, ~ 44 ). The State contends that, for purposes of Ohio immunity statutes, 

an Ohio "officer'' or "employee" includes a person rendering dental services 

"pursuant to a personal services contract or purchased service contract with a 

department, agency, or institution of the state." /d. (quoting O.R.C. § 

1 09.36(A)(1 )(b)). Therefore, the State argues, defendant Finney- who is alleged 

by plaintiff to be a contracted dental care provider- is entitled to the same personal 

immunity as the other defendants. /d. at 3. 

The State of Ohio's objection is well-taken. Plaintiff's allegations describe 

defendant Finney as a state "officer" or "employee" for purposes of O.R.C. § 

109.36(A)(1)(b). This definition, in turn, applies to the term "state employee" as it 

appears in O.R.C. § 9.86. See, e.g., Theobaldv. Univ. of Cincinnati, 111 Ohio St.3d 

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541, 543 (2006). Defendant Finney is therefore entitled to immunity on plaintiffs 

state law claim of negligence. 

Accordingly, the State of Ohio's objection, Doc. No. 11, is SUSTAINED. The 

state law claim of negligence as against defendant Finney is DISMISSED. With that 

exception, the Order and Report and Recommendation, Doc. No.7, is ADOPTED 

and AFFIRMED. 

In light of this ruling, the motion of defendants Hudson, Finney and Huling to 

stay the deadline for their response to the Complaint, Doc. No. 20, which was 

originally due on August 30, 2012, is MOOT. These defendants and defendant 

Lyons4 may have fourteen days from the date of this Opinion and Order in which to 

file a response to plaintiffs Complaint. 

IT IS SO ORDERED. 

Mi hael H. Watson, Judge 

United States District Court 

4The State of Ohio represents that defendant Lyons, who has received service of process, Doc. 

No. 15, has not formally requested representation from the Ohio Attorney General's Office. Doc. No. 20, 

p. 2 n.2. However, the Ohio Attorney General has joined defendant Lyons in the requested extension of 

time pursuant to its authority to enter an appearance in a case to represent its interest even where there 

has been no such request by the defendant employee. /d. (citing O.R.C. § 109.361}. 

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